Good news and bad news in med-pot battles

By
Richard Cowen
on November 24, 2000

Feds can’t threaten doctors
On September 7, US District Judge William Alsup of San Francisco ruled that federal authorities cannot strip doctors of their licenses to prescribe controlled substances ? or otherwise threaten them ? for recommending that their patients try marijuana for medical reasons. Alsup issued a permanent injunction against the federal government, implying that to allow the feds to punish doctors would violate the physicians’ First Amendment rights.

Alsup’s 24-page opinion said that, in some cases, “it will be the professional opinion of doctors that marijuana is the best therapy or at least should be tried,” and that in California and the other states with similar laws “recommending marijuana to treat certain debilitating illnesses is recognized as legitimate in medically appropriate circumstances,”

“If such recommendations could not be communicated,” he concluded, “then the physician-patient relationship would be seriously impaired.”

After California voters approved the state’s medical marijuana initiative in 1996, Drug Czar Barry McCaffrey, Attorney General Janet Reno, and HHS Secretary Donna Shalala called an extraordinary press conference to announce that doctors who recommend marijuana faced losing their federal licenses to prescribe DEA controlled drugs, such as pain relievers and anti-depressants. They also suggested that the doctors even risked criminal prosecution and exclusion from Medicare.

Consequently, in January 1997, a group of doctors and patients filed a statewide class action, saying the federal government was violating its free speech rights. (The case is Conant vs. McCaffrey, C97-00139WHA.)

Since then, medical marijuana laws have been passed in other states, and all them ? except Maine ? are in the 9th Circuit of the US Appeals Court system and are covered directly by this ruling. (In other areas, it is not binding, but it is very likely that other courts would rule the same.)

Aslup’s ruling has three practical consequences. First, patients should have less difficulty in finding a doctor willing to “recommend” medical marijuana in accordance with their state laws. Second, it should take some of the pressure off those doctors who have been willing to take the risk before this injunction. Third, it may even give some doctors the courage to speak out publicly in favor of medical marijuana.

And then there was some bad news, although Jeff Jones of the Oakland Cannabis Buyers’ Cooperative and Robert Raich, his attorney, chose to describe it as “a bump in the road.”

In an action that was legally disturbing, morally outrageous and more than a little confusing, the US Supreme Court ? in a 7 to 1 vote ? granted the Clinton Administration an emergency temporary stay of a ruling by US District Court Judge Charles Breyer. Breyer, under instructions from the 9th Circuit, was going to allow the Oakland Cannabis Buyers’ Cooperative (CBC) to distribute medical marijuana to patients who meet a “medical necessity” test.

What made the Court’s stay so outrageous was that Breyer’s criteria for “medical necessity” specifically included the requirements that the patients would suffer “imminent harm” because they would have no “reasonable alternative” to medicinal marijuana. In effect, the federal government told the Supreme Court that allowing the Oakland club to distribute medical marijuana ? even to prevent “imminent harm” for which there was no “reasonable alternative” ? would make it impossible to maintain the drug war.

Justice John Paul Stevens dissented, on the grounds that the government “has failed to demonstrate that the denial of necessary medicine to seriously ill and dying patients will advance the public interest, or that the failure to enjoin the distribution of such medicine will impair the orderly enforcement of federal criminal statutes.”

This is a civil case against the Oakland CBC only and is not a challenge to any state’s medical marijuana law. Consequently, the stay does not invalidate California’s Proposition 215. None of the state medical marijuana laws have been challenged in court, on any grounds, and the Court cannot invalidate a state law unless it has such a challenge before it.

The Supreme Court may hear arguments on the case in its fall session, or it may take another year or more to rule. In the meantime, the US medical marijuana movement will continue to gather momentum. The next administration that comes into office in January will have to confront the issue and decide if the drug war really depends on persecuting the sick and dying, and if the political power of the police?means more than the opinion of the voters.Jeff Jones (L) and Dr Tod Mikuriya: Medical pot battle in Oakland.